Crosswhite v. Jumpking, Inc., Civ. 04-6311-AA.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Citation411 F.Supp.2d 1228
Docket NumberNo. Civ. 04-6311-AA.,Civ. 04-6311-AA.
PartiesGary CROSSWHITE, Plaintiff, v. JUMPKING, INC., Defendant/Third Party Plaintiff, v. Jack and Misty Urbach, Third-Party Defendants.
Decision Date26 January 2006
411 F.Supp.2d 1228
Gary CROSSWHITE, Plaintiff,
JUMPKING, INC., Defendant/Third Party Plaintiff,
Jack and Misty Urbach, Third-Party Defendants.
No. Civ. 04-6311-AA.
United States District Court, D. Oregon.
January 26, 2006.

Page 1229

Daniel M. Spencer, Daniel M. Spencer LLC, Bend, OR, Scott M. Adam, McCormick Adam & Macdonald, P.A., Overland Park, KS, for plaintiff.

William Wheatley, Jaqua & Wheatley, LLC, Eugene, Oregon, Brandon J. Baxter, Beards & Park, L.C., Logan, UT, for defendant/third-party plaintiff.

Carl R. Rodrigues, Lehner, Mitchell, Rodrigues & Sears, Portland, OR, for third-party defendants.

Page 1230



Defendant/third-party plaintiff Jumpking, Inc. (Jumpking) filed a summary judgment motion. The motion is granted and the case is dismissed.


On May 11, 2002, plaintiff, Gary Crosswhite, was jumping on a trampoline with a another boy. The trampoline was owned by Jack and Misty Urbach, third-party defendants. The 14-foot round-shaped "backyard" trampoline was manufactured by defendant/third-party plaintiff, Jumpking, and purchased by the Urbach's from Costco, Inc. sometime in 1999.

While on the trampoline, plaintiff attempted to execute a back-flip and accidentally landed on his head and neck. The force of the fall caused a fracture in plaintiff's cervical spine resulting in paraplegia. Plaintiff was sixteen years old at the time of his injury. Plaintiff alleges that his injuries were caused by: (1) the round trampoline design without center markings; and (2) inadequate warnings and instructions. Plaintiff brings this lawsuit against Jumpking alleging the following claims: (1) strict liability; (2) negligence; and (3) breach of implied warranty. Jumpking filed a lawsuit against third-party defendants, the Urbach's, for indemnity and contribution if Jumpking is found liable to the plaintiff.

Plaintiff, represented by counsel, filed this lawsuit on September 1, 2004. Over one year later, on November 10, 2005, defendant filed the summary judgment motion at bar. Plaintiff's response in opposition to defendant's motion was due on November 21, 2005. To date, plaintiff has not filed any opposition to the motion. Therefore, the court will consider the motion unopposed.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Substantive law on an issue determines the materiality of a fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.


Oregon defines a product liability action as "a civil action brought against a manufacturer, distributer, seller or lessor of a product for damages arising out of: (1) any design, inspection, testing, manufacturing

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or other defect in a product; (2) any failure to warn regarding a product; or (3) any failure to properly instruct in the use of a product." Or.Rev.Stat. 30.900(1)-(3). This statute "embraces all theories a plaintiff can claim in an action based on a product defect." Kambury v. DaimlerChrysler Corp., 185 Or.App. 635, 639, 60 P.3d 1103 (2003). This includes claims based on theories of negligence, strict liability, breach of warranty and fraudulent misrepresentation. Simonsen v. Ford Motor Co., 196 Or.App. 460, 466, 102 P.3d 710 (2004), rev. denied, 338 Or. 681, 115 P.3d 246 (2005).

I. Defective or Unreasonably Dangerous

Plaintiff must present evidence that the trampoline was defectively designed. Oregon law holds that the seller of a product "in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm or damage to property caused by that condition if (a) the seller or lessor is engaged in the business of selling or leasing such a product; and (b) the product is expected to and does reach the user or consumer without substantial changes in the condition in which it is sold or leased." ORS 30.920(1). Oregon has adopted the "consumer expectations test" pursuant to § 402A, comments a — m, as the theory of liability for ORS 30.920. See McCathern v. Toyota Motor Corp., 332 Or. 59, 77-79, 23 P.3d 320 (2001)(Court rejected the "reasonable manufacturer test" in favor of the "consumer expectations test," which is in keeping with the language of ORS 30.920 and § 402A of the Restatement (Second) of Torts). Under the consumer expectations test, the plaintiff must prove that when the product left the defendant's hands, the product was: (1) in a defective condition not contemplated by the ultimate consumer which made it unreasonably dangerous; and (2) the defective product was dangerous to an extent beyond that which the ordinary consumer would have expected. Id.; ORS 30.920(1)-(3).

The defendant asserts that the trampoline was in a condition contemplated by an ordinary consumer or user and was not unreasonably dangerous when it left defendant's control. Plaintiff must show that at the time the trampoline left defendant's possession, it was in a condition not contemplated by an ordinary consumer which rendered it unreasonably dangerous. Jack Urbach testified that all parts of the trampoline were present when he assembled it in 1999. Defendant's Ex. 3, p. 41. "The burden of proof that the product was in a defective condition at the time it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden will not be sustained." § 402A, Comment g. Plaintiff has not submitted any evidence to meet this burden. There can be no dispute that an ordinary consumer buys and uses a trampoline to jump on it, and a design that allows for such activity is exactly that which is contemplated by an ordinary consumer or user of a trampoline. Jack Urbach testified that he and his wife purchased the trampoline for the "family to have fun." Defendant's Ex. 3, p. 30. Moreover, plaintiff testified that he jumped on the Urbach's trampoline for "fun," and "never" had any problems with it. Defendant's Ex. 1, p. 77-78.

I find no evidence in the record to dispute defendant's contention that when Urbach purchased the trampoline in 1999, the trampoline box contained all of the parts designed to be included by the manufacturer, and that he assembled the parts in accordance with defendant's specifications. Further, defendant notes that plaintiff has failed to offer a practicable alternative design that defendant could have used that would have eliminated the alleged unsafe

Page 1232

characteristics of the trampoline without destroying its utility. See Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322 (1978)(requiring plaintiff to offer evidence that proposed alternative design is "practicable," and requiring court to "balance the utility of the risk against its magnitude" before sending case to a jury). In Wilson, the Oregon Supreme Court held that, "the trial court should not permit an allegation of design defect to go to the jury unless there is sufficient evidence upon which to make this determination .... plaintiffs' prima facie case of a defect must show more than a technical possibility of a safer design." Id. at 67-68, 577 P.2d 1322 (internal quotation omitted).

Plaintiff's complaint against the defendant seems to be that all trampolines are defectively designed and should be banned from the marketplace. Plaintiff's allegation, however, of the trampoline's defective design requires evidence of a safer, practicable design that would reduce the risk associated with its use while not reducing the product's utility. It is not sufficient that plaintiff merely allege that the trampoline is defective without offering evidence that there exists a safer and...

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